RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01970
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20070315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Infantry Unit Leader, medically separated for “post traumatic arthritis, status post left anterior cruciate ligament [ACL] injury,” with a disability rating of 20%.  

CI CONTENTION:  The CI contends his left and right knee should have been rated higher due to continuous weakness, locking, popping, giving way and swelling of his knees.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based upon a review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

SERVICE PEB - 20061220	VARD - 20070511	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post Traumatic Arthritis, S/P Left ACL Injury	5299-5262	20%	Post-Operative Left Knee ACL Tear with Degenerative Joint Disease	5010-5260	10%	20070205	
			Post-Operative Left Knee Scar	7802	0%		
Right Knee Early Osteoarthritis	Cat II	Right Knee Degenerative Joint Disease	5003-5260	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Post Traumatic Arthritis, S/P Left ACL Injury.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a traumatic left ACL injury, underwent ACL reconstruction surgery in January 2000, and was returned to full duty by MEB in 2002.  
At the primary care clinic visit dated 11 July 2006, 8 months prior to separation, the CI reported increasing left knee pain since surgery and the onset of right knee pain.  He had bilateral knee pain with locking and give way bilaterally 3 times a day.  Physical examination showed normal range of motion (ROM) with no instability or laxity of either knee.  Pain was elicited with motion and with varus (bow-leg) stress.  Each knee had tenderness at the medial joint line and around the patella, without knee weakness.  Gait was “no limping observed.”  Follow-up X-rays indicated bilateral patellar degenerative joint disease with osteophytes (left greater than right).  The CI had injections for both knees.  

There was no indication for additional surgery, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “osteoarthrosis, localized, not specified whether primary or secondary, ankle and foot” for PEB adjudication.  

The MEB NARSUM examination on 27 November 2006, 4 months prior to separation, noted complaints of increasing bilateral knee pain since left knee ACL surgery in 2000.  Physical examination showed a wide-based gait.  Knee ROM was 1 degree of hyperextension (normal 0) and flexion to 100 degrees (normal 140) bilaterally.  There was no instability.  There was bilateral joint line tenderness and bilateral pain on McMurray’s (testing for meniscal injury).  The diagnosis was post-traumatic left knee osteoarthritis with early osteoarthritis on the right.  

At the 5 February 2007 VA Compensation and Pension (C&P) evaluation, performed a month before separation, the CI reported bilateral 8/10 knee pain with stiffness, swelling, and locking three times a day brought on by activity or weather.  He had difficulty at times with squatting, kneeling, or running.  X-rays indicated bilateral degenerative joint disease with osteophytes and surgical hardware on the left.  Physical examination showed a normal gait.  ROM testing showed bilateral knee crepitus and limited motion with 0 degrees extension bilaterally and left knee 110 degrees flexion with right knee 120 degrees of flexion.  There was painful motion on the left knee, but not on the right.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 20%, coded analogous to 5262 (tibia and fibula, impairment of).  The PEB also listed right knee early osteoarthritis as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The Board agreed the left knee was not part of the right knee condition, although potential guarding of the left knee may have placed greater stresses on the right knee.  The right knee fitness and rating will be discussed below.  The VA rated the left knee condition 10% coded 5010-5260 (arthritis, due to trauma - leg, limitation of flexion of), based on the VA C&P examination citing crepitus and limited motion.  The VA also rated the left knee surgical scar 0% coded 7802 (Scars, other than head, face, or neck, that are superficial and that do not cause limited motion).  The VA additionally rated the right knee condition 0% coded 5003-5260 (arthritis degenerative and leg, limitation of flexion of) citing non-compensable limitation of motion, degeneration and no objective evidence of painful motion.  

The Board carefully reviewed the examinations proximate to separation, and there was no mechanism for any rating higher that the 20% (moderate knee disability) awarded by the PEB for the left knee.  The right knee had not undergone surgery, but had joint degeneration and pain, as well as treatment with injections proximate to separation (similar to the left knee).  The Board adjudged that the right knee was unfitting and separately ratable.  The preponderance of examinations in evidence supported painful motion and functional loss of the right knee, which supported a 10% rating IAW VASRD §4.40, §4.45, §4.59.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s disability rating of the left knee; and a finding of an unfitting with a disability rating of 10% for the right knee condition, coded 5003-5260.  
BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change to the PEB adjudication.  In the matter of the contended right knee early osteoarthritis  condition, the board unanimously agrees it was unfitting and unanimously recommends a disability rating of 10%, 5003-5260, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Post Traumatic Arthritis, S/P Left ACL Injury	5299-5262	20%	
Right Knee Early Osteoarthritis	5003-5260	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 22 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 4 Oct 16 ICO  XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (j) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by assignment to the Permanent Disability Retired List with a final disability rating of 30 percent (increased from 10 percent).  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.   

     e. XXXXXXXXXXXXXXXXXX, former USMC: An increase in disability rating from 30 percent to 60 percent for the period on the Temporary Disability Retired List followed by a final disability rating of 20 percent with entitlement to disability severance pay.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.
 
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)